The new Egyptian constitution: a step forward or a balancing act?

What kind of Constitution was approved by over 19 million Egyptian voters who in the referendum of last January 14 and 15 approved the work of the Committee of 50 in charge of drafting a new Fundamental Law? According to Nathalie Bernard-Maugiron one of the greatest experts of the Egyptian law, it is legitimate to question if this text is really ‘the first step towards a democratic transition able to reform the malfunctioning of the state or simply a reflex of the present balance of power and corporative interest of the various institutions of the State’ (See La Constitution égyptienne est-elle révolutionnaire?).

In this new Constitution it is not in fact difficult to see the hand of the powers that provoked the destitution of President Morsi. First of all the army: the Preamble emphatically claims that it is linked to the Egyptian population by a ‘firm bond’ (al-‘urwa al-wuthqà, a Qur’anic word), which explicitly makes it the most significant institution of the Egyptian state. It keeps the privileges which were already attributed to the constitution in 2012: its balance is still not under the control of Parliament, while the Minister for Defense must be chosen by the officials with the approval – and this is new in the text of 2013 – of the supreme council of the Armed Forces for a transitory period of 8 years (two presidential terms). The notorious dispositions on the law of military tribunals to judge civilians have been maintained even if in respect of the constitution of 2012 the conditions for applying this are more precise.

The other organ that benefited by the Constitutional review is the Magistrature, which during Morsi’s mandate had represented a strong power against the hegemonic ambitions of the Brothers. It gets back the guarantees which the constitution of 2012 had deprived it from and it obtains new guarantees, among which the possibility for the Constitutional High Court to select its members and nominate its President.

There is also a strong stamp of the left wing political and social powers, well represented within the committee of 50. Not only in the introduction do we see a certain Nasserian rhetoric to which general al-Sîsî is not insensitive, but the Chart extends the chapter of social rights and lays down also the objectives of balance, that could provoked, if respected, the economic collapse of a State already in great difficulties (see E. Trager, Egypt’s new Constitution: Bleak Prospects).

Instead the new text reshapes the role of Islam. Article 2 of the Constitution remains unchanged and the principle of the Sharia continue to be defined as ‘the principle sources of Egyptian law’, but the Preamble establishes that the interpretation of these norms must be done in the light of the jurisprudence of the Constitutional High Court, which is traditionally liberal. Article 4 disappears, which obligates Parliament to consult al Azhar on all questions linked to the Sharia, article 219, which specified the meaning of ‘the principle of the Sharia’ and article 44, which prohibited insulting or attacking the prophets. At the same time it affirms that Egypt is ‘a modern democratic state ruled by a civil government’, a term that is sufficiently ambiguous to signify at the same time ‘non religious and non military’. Finally parties with a religious basis are forbidden (article 74) a norm that if it understandably aims at avoiding abuse caused by the political use of religion, betrays a certain incoherence: how can you in fact prohibit a religious party when the whole juridical structure of the country should be based on the principles of the Sharia?

New positive points emerge from the increase of rights and protected freedom, including those contained in the agreements and international treaties ratified by Egypt on human rights. Furthermore, for the first time the state commits itself to protecting women from all forms of violence and to give them full equality with men in civil, political, economic and social rights (article 11). Where instead religious freedom and cult are concerned the rights recognized to Jews and Christians to apply their own laws in the subject of personal statutes is not to be extended to other religions. To compensate, the freedom of belief which was previously ‘guaranteed’, becomes ‘absolute’ (article 64). Obviously, this norm will depend on the interpretation given to it as just to make an example, among the principles of the Sharia which article 2 refers to, there is the protection of (Islamic) religion.

Many were expecting a more courageous text more in line with the expectations that came from the revolution of 2011. The Chart which however is a little step forward, with respect to the preceding text, has effectively many limits. In general it seems to be too much dominated by the actual social and political contingency. Rights and duties are attributed in detail on the basis of on one’s social and professional class at the expense of a synthetic vision. Guarantees increase but at the same time the state is given the instruments to get round them, and the balance of powers is still in favor of the President, while the rhetoric and stereotype celebration of the history of the country and the revolution contained in the Preamble sounds more like a prior legitimization of the regime which could come than like a narrative shared by all Egyptians (or at least by the greatest part of them).

It would be a mistake however, to judge the whole transition process in the light of the new constitution. Constitutional engineering can – and must – support good politics and a good society but it cannot institute this. The reconstruction of Egyptian public life disheartened by decades of authoritarianism is the patient work with which all subject of civil society and of politics must be engaged in and it cannot emerge from the work of an assembly or a committee. In this sense the recall of Pope Francis to give preeminence to the time that process requires rather than occupying places of powers (See Evangelii Gaudium 233) has universal value.

Of course, in the difficult Egyptian context it is not surprising that consideration is given to illusionary short cuts. This was written Last November by Amr Shoabaki, a political scientist and member of the committee of 50, seeing the hope of a man of providence grow among Egyptians: ‘People must not wait for a savior who has a magic wand and he must not think that one person, however powerful and popular, can change the situation in Egypt without the commitment of all: not only those who support the government coalition but also those who oppose it. Both can build a new political space together of which no one has the monopoly and in which the opposition does not just have the fall of who is in power as its objective’.

The fact that general al-Sîsî went in to politics represents for many the possibility to reestablish a certain order (even if not democratic) in the political life after three years of ups and downs. But this cannot just labelled as ‘ a return to the past’. Many do not seem to recognize it but the popularity that the military enjoys at the moment is not a sign that the revolutionary parenthesis is to be got rid of so much as the desire to start again after the disastrous experience of government of the Muslim Brothers.

The data of the referendum confirm this even if more discreetly than it was expected by the coalition which got rid of Morsi. The comparison between the 2012 referendum and today’s must be dealt very cautiously. However, if it is true that the electoral turnout of 38% is superior by only 6% to the referendum which approved of the constitution of the Brothers (a very significant result however, if compared to Mubarack’s time). In absolute terms the ‘yes’ for the new constitution are almost 20 million (36% of the Egyptian electorate) against 11% in 2012 (22% of the Egyptian electorate). At the same time the referendum opened the way for al-Sîsî to be a candidate in the next presidential election, but it does not unconditionally give him the keys to Egypt. Of course the risk that Egypt will further strengthen the State-barrack does exist, but many of those who voted for the Constitution, and among these certain categories such as women and Christians, who in the past were traditionally against participating in politics are now disposed to take this risk in order to close the brief but tormented chapter of State-brotherhood.

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